Note: the opinion on which this post is based has been withdrawn and replaced with a longer opinion describing a slightly different holding by the juvenile court. I have described the revised opinion in a new post. Other than this paragraph, however, I have not attempted to revise this post.

We’re looking at the case of T.B. v. T.H. and S.H., Case No. 2071009 (Ala. Civ. App. February 27, 2009). Mom was the custodial parent. The maternal grandmother and her husband filed a petition in Lee County alleging the child was dependent and seeking custody (yes, this pits Mom against her own mother). For brevity, let’s call them “the grandparents.” The juvenile court awarded the grandmother temporary custody and scheduled a hearing.

After that hearing, the juvenile court stated that, although the case was originally filed as a dependency action (and assigned a juvenile court case number), he considered it in actuality to be simply a case about custody of the child. The judge declared to the parties that, because he sometimes served as a juvenile court judge and sometimes served as a circuit court judge, he considered himself in this case to be sitting as a circuit court judge (note: the case still bore a juvenile court case number).

The judge later issued a ruling finding that the child was not dependent but awarding custody to the grandparents, subject to visitation for the mother. The judge found that the mother had voluntarily given up custody to the grandparents, that she was unfit to be entrusted with the child, that the grandparents had shown that award of custody to them would materially promote the child’s best interest, and that a decision NOT to award custody to the grandparents would have a disruptive effect on the child.

The judge purported to sign this order in his capacity as a circuit court judge. When the mother’s motion to alter, amend, or vacate was denied by operation of law, she appealed.

Neither party raised an issue with jurisdiction on appeal, but the appeals court raised the issue of jurisdiction ex mero motu (on its own motion). The appeals court stated that juvenile courts have “extremely limited jurisdiction.” That limited jurisdiction depends on a finding that the child is dependent. Once the juvenile court judge in this case found that the child was not dependent, the appeals court said, the basis for the juvenile court’s jurisdiction evaporated, and the case was due to be dismissed.

The judge in this case seems to have been aware of a question of jurisdiction, which is why (apparently) he made the statement he did about acting in his capacity as a circuit judge. Unfortunately, the appeals court opinion makes it clear that the juvenile court did not go quite far enough. The appeals court stated that the juvenile court lacked jurisdiction to issue an order dealing with child custody, so the judgment it issued in this case was void. Because a void judgment will not support an appeal, the appeals court dismissed the appeal.

The appeals court did its job, so now let’s do a real-life post mortem. One can sympathize with the judge in Lee County. Seeing a vulnerable child and a workable solution and trying to act wisely with the fine china of these people’s lives, he cobbled together what he thought would take care of this child without generating extra legal fees and delays for the parties.

I don’t know this case, the parties, or the lawyers, so I have no idea what’s going to happen “on the ground” in response to it. But for the reasons we’ve described above, the mother now has legal custody of a child who has been living with his or her grandparents for the better part of two years. The “disruptive effect” that Alabama courts agonize over at such length in the McLendon context is going to present itself here in all its glory.

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